In what may go down in the nation’s political history as the most monetised Presidential election primaries, both the ruling party, APC, and the main opposition party, PDP, conducted primaries which produced their presidential flag bearers. The question on the lips of many is, who outspent who? PDP or APC? What does the law say about political spending? Should there be a more reasonable ceiling in the amount spent on primaries and campaigns, as it is done in other climes? Norrison Quakers, SAN, Uju Peace Okeke, Jide Ojo and Dr Sam Amadi in this discourse, examine the issues which flowed from the recently concluded party primaries of the political parties, preparatory to the 2023 general elections
Nigeria’s Democracy and Votes for Sale
Norrison Quakers, SAN, FCArb
This year has been quite eventful in the political landscape of our polity, for reasons not unconnected with the forthcoming 2023 general elections. The question of the Electoral Act amendments with the several court pronouncements/appeals has left some uncertainty, in view of the timeline the Independent National Electoral Commission (INEC) is constrained to work with. Likewise, the extension of the deadline for the Primary Election of political parties after pressure was mounted on INEC, gave room for scepticism on the part of electorate on the true independence of INEC. This, coupled with the fact that the Central Bank of Nigeria, that previously stored sensitive electoral materials, is now being questioned as to its neutrality due to the Presidential ambition of its Governor; the issue of his eligibility was eventually submitted for the court to determine.
Many have nursed the hope that the monetisation of Nigerian demozcracy witnessed in previous elections, would not be the case with the 2023 elections. Regrettably, their hope has been deflated by the humongous size of corrupt practices that greeted the recently concluded Primary Elections of political parties, with series of reports of bribery of Delegates at the Primary Elections/Swapping of List of Delegates. This can be directly linked to the high cost of Nomination Forms for elective offices of the Political Parties, shutting out the patriotic individuals lacking the financial wherewithal to participate, whilst allowing people with questionable sources of income to have a smooth sail.
The position of ‘Delegates’ of the Political Parties have been monetised, with various allegations of substitution of List of Delegates and bribery of Delegates at the Primary Election of Political Parties, in the face of the nagging issue of whether Section 84(8)of the Electoral Act 2022 (EA) can be interpreted to have excluded ‘statutory delegates’ from voting at the convention, congress or meeting of the Political Parties by virtue of Section 223 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 84(8) of the EA provides that delegates to vote at the indirect primaries and national convention of political parties to elect candidates for elections, shall be those democratically elected for that purpose only. Of note, Article 20(iv)(c) of the Constitution of the Ruling Party – All Progressive Congress (APC) allows Statutory Delegates to vote at convention, congress or meeting.
Ordinarily, Delegates are meant to be the voice of members of the Political Parties they represent. On disenfranchisement, the dictionary meaning of the word is a deprivation of a franchise, of a legal right, or of some privilege or immunity; most especially a deprivation of the right to vote. The Supreme Court has held in several cases that, where a petitioner alleges disenfranchisement of voters, he must prove his case through the testimony of the disenfranchised voters, polling unit by polling unit and ward by ward. Ucha v Elechi (2012) 13 NWLR (Pt. 1317) 330.
In Huth v Clarke (1890) 25 Q.B.D. 391 the following observation on ‘Delegates’ which appears to be opposite, was made by Lord Coleridge, C.J., at page 394:
“But delegation does not imply a denudation of power and authority… The word ‘delegation’ implies that powers are committed to another person or body, which are as a rule, always subject to resumption by the power delegating and many examples of this might be given. Unless, therefore, it is controlled by statute, the delegating power can at any time resume its authority”.
The state of affairs with the recently concluded Primary Elections of Political Parties, confirms that Delegates are not the voice of members of the Political Parties they represent. Admittedly, the position of law is settled, as aptly captured in Chinwo v Owhonda (2008) 3 NWLR (Pt. 1074) 341 wherein it was held that where an individual elects to and subscribes to the membership of an association, in the exercise of his constitutional right under Sections 39 and 40 of 1999 Constitution which guarantee freedom of thought, assembly, association, etc, he is bound by the internal rules and regulations of the association.
Hence, the act/choice made by Delegates at Primary Elections, will bind the members of the Political Parties they represent; this is buttressed by the fact that, there is a rebuttable presumption that the result of an election declared by a Returning officer is authentic until proved otherwise in court or at an election tribunal: Omoboriowo v Ajasin (1984) 15 NSCC 81 at 97-98; Nwobodo v Onoh (1984) 1 SC at 52-53.
Nonetheless, nowhere else is the need to do substantial justice greater than in election petition, for the court is not only concerned with the rights of the parties inter se, but the wider interest and rights of the constituents who have exercised their franchise at the polls. Per Suleiman Galadima JSC in Ikpeazu v Otti & Ors (2016) LPELR-40055 (SC) (Pp 56-56 Paras C-E). Consequently, aggrieved members of political parties can challenge any person falsely holding himself out as a ‘Delegate’, without having their mandate to so act. It will be interesting to see this, in expanding the frontiers of our democracy.
Other Matters Arising
It is regrettable that allegations of issuance of Permanent Voters Card (PVC) to underage persons and aliens, compromising of Delegates’ List, payment of Delegates in exchange for votes (this entails huge sums since several aspirants jostle for each of those tickets, whilst bribing delegates in foreign currency), complaints of inaccessibility of voting centres, amongst others, still characterise the election season today. More interesting is permutations over the possibility of Muslim-Muslim ticket for the Presidency, South East aspirants in the major political parties not being given the desired spotlight, extension of deadline for PVC Registration, amongst others.
There has been stiff competition by political parties, towards finding a Messiah to replace His Excellency Major General Muhammadu Buhari (Rtd) who has served as President of Nigeria since 2015. The recent Primaries of the APC came with its theatrics, with many believing that the National Leader of the APC, Jagaban of Borgu, Asiwaju Bola Ahmed Tinubu, had been thrown under the bus by his allies, only for him to rise against all odds as the Flag Bearer of the Ruling party. #OBIdient is trending on various social media platforms for Peter Obi, the Labour Party (LP) candidate; likewise the stalwarts of the Waziri Adamawa- the Presidential candidate of Peoples Democratic Party, PDP, Alhaji Atiku Abubakar GCON, are not left out, even as he has recently released his economic agenda guiding principle. There is also Rabiu Kwankwaso of the New Nigeria Peoples Party (NNPP), amongst others. Already, INEC has fixed June 17th, 2022 as the deadline for Presidential candidates to name their running mates. The future of our fatherland, is to be determined by the choices we make today definitely.
Various shortcomings of the electoral process in Nigeria, have been identified. In all of this, the electorate has been keenly following. To avoid apathy of voters; there is the need to convince voters that indeed, their votes will count. This is the hallmark of democracy.
There is no gainsaying that ours is a #Sorosoke Generation, hence to avoid resort by voters to ‘Street Revolution’ as opposed to ‘Ballot Revolution’, we must take steps to save the electoral process from the virus of illegality, credibility problems and absurdity. The future of our children should never be mortgaged; a political system built on bribe for votes, is definitely designed to assassinate the concept of democracy.
Norrison Ibinabo Quakers, SAN, Constitutional and Commercial Lawyer, Lagos
Democracy or Plutocracy: Which Way Nigeria?
Uju Peace Okeke
Plutocracy is a government controlled directly or indirectly by the wealthy. Democracy, on the other hand, is a system of government where citizens select leaders through competitive elections and hold them accountable for their actions, thereby indirectly making laws and policies. Democracy is preferred, because it aids development and fosters unity. Nigeria practises democracy. As if to clear all doubts, the 1999 Constitution (as amended) provides categorically in Section 14 (1) that Nigeria shall be a State based on the principles of democracy. Democracy is not just an end, but also a means to an end; thus, it involves a process which includes election, political party system, etc. The Constitution created the Independent National Electoral Commission (INEC) as the election management body, to see to free and fair elections. As political parties remain a major platform for political representation, it authorises the National Assembly in Section 228 to make laws for internal democracy within political parties and empowers INEC to enforce the law. Following this, the National Assembly enacted the Electoral Act (as amended) in which it, among other provisions, limits election expenses for the various political offices.
The Electoral Act
The 2022 Electoral Act, in Section 88 raised the respective expenditure ceilings. For instance, now, a Presidential candidate can spend N5 billion (formerly N1 billion), Governorship candidates can spend N1 billion (formerly N200 million), Senatorial candidates, N100 million (formerly N40 million), while House of Representatives candidate can spend N70 million (formerly N20 million). For membership of the State Assembly and local government chairmanship, they can spend N30 million (formerly N10 million), while Councillorship candidates can spend N5 million (formerly N1 million).
One of the reasons for this increment, is that candidates usually spend more than what is provided in the law. However, this reason is not tenable, because most citizens live below the poverty line as the minimum wage is N30,000 monthly, and even some States are still unable to pay it. It follows that a greater number of Nigerians cannot afford to contest elections, questioning the beneficiaries of this law. This means that people may be forced to borrow money to finance this expensive venture, and when they get there, will as a matter of urgency, repay the money plus interest. The National Assembly, by this act, is commercialising political representation. This runs afoul of Section 13 of the Constitution which mandates all organs of government, authorities and persons to conform to the observance of Chapter II – Fundamental Objectives and Directive Principles of State Policy. This chapter includes the provision in Section 14 (1) having social justice as one of the two principles on which Nigeria is based, while (2) (c) insists on the ensuring the participation of Nigerians in government. In the light of this raised ceiling, how many Nigerians will be able to participate? Where then lies the social justice? The practical implication of this provision of the Electoral Act, offends Section 42 of the Constitution which guarantees equality, as only a few people, particularly males, can afford to fund their desire for political representation. This is especially so, as poverty wears the face of a woman. It further violates Section 34 of the Constitution on the right to dignity, which simply means the right to be treated like a human being. This is evident in deliberate act of denying most Nigerians equal opportunity for political representation.
Section 1 of the Constitution (as amended) is emphatic that the Constitution is supreme while (3) insists that any law that is inconsistent with it shall be void to the extent of its inconsistency. Apparently, the practical implication of this law, strongly suggests it cares less about the provisions of Constitution. Whether this is a case of legislative lawlessness, is a topic for another day. It is a no-brainer that where the cost for political representation is reduced to the barest minimum, more Nigerians will get involved, offering the voters a wider array of choices and a chance at getting it right.
Is this Democracy?
A good democracy is a broadly legitimated regime that completely satisfies the citizens, who must enjoy a moderate level of liberty and equality. While ours is legitimated as we have the laws, pertinent questions remain, are Nigerians satisfied and do they enjoy moderate level of equality especially as it relates to political representation? Unfortunately, most Nigerians cannot honestly answer these questions in the affirmative, because Sections 65/66/, 106/107 and 131/177 which provide for candidacy qualifications for National and State Houses of Assembly, as well as President and Governor mention age, education and citizenship. These qualifications take our equality into consideration, and suggest that any qualified and devoted Nigerian can contest in elections, but the reverse is the case, as the monetary qualification under the Electoral Act discriminatorily excludes a large number of Nigerians.
The enabling environment of political representation is unfriendly, as the cost is outrageous. Nigerians were shocked to their marrow, to observe political party nomination forms selling for as much as N100 million. As if that was not bad enough, delegates shamelessly received payments in Dollars. In fact, it was a heavy rain of Dollars, as delegates received in one day annual salaries of workers even in developed climes, setting a dangerous precedent. This wicked act, occurred in the face of massive hunger in the country. Nigeria uses Naira, yet the system allowed delegates to openly earn in Dollars, which has the effect of further devaluing the Naira. This reprehensible act was done by elites, who ought to know better. Sadly, they promise to make Nigeria great and better the lot of Nigerians, yet the very first step of sharing Dollars is an attempt at destroying the economy. What kind of development are they promising? How can an average qualified Nigerian who has the zeal to better the country, afford the cost of the election nomination forms and paying delegates, when he or she has not as much as earned close to these amounts? It seems these offices are reserved solely for the wealthy, who may not have any interest in improving the country. Of course, this will result in the enactment of policies that favour only the wealthy, when they get there.
It is worthy of note that, delegates of different tribes and genders received this money aimed at influencing their decisions. In fact, social media was awash with what they did with the money. One of the delegates from the North shared the money received which was close to N20 million, with the poor in his State. While some laud him for the seemingly magnanimous gesture, the question remains, should the money have been given and received? Can a right result emanate from a wrong act? The law as posited in the locus classicus case of UAC v MCFOY is that, one does not put something on nothing because it lacks the leg to stand. Can the delegates truthfully tell Nigerians that their votes were free and fair, and not influenced by the Greek gifts? It is not just appalling, but the fact that Nigerians are yet to read that Economic and Financial Crimes Commission (EFCC) is investigating these matters is worrisome. Shouldn’t EFCC be beaming its powerful searchlight on politicians and political activities, especially in the light of recent happenings?
The motto of Nigeria according to Section 15(1) of the Constitution is ‘Unity and Faith, Peace and Progress’. Buttressing this, (5) provides ‘the State shall abolish all corrupt practices and abuse of power’, if these are not acts of corruption, one wonders what are. Recent happenings are even embarrassment to the word ‘corruption’.
Again, Nigerians are yet to read of Independent Corrupt Practices and Other Related Offences Commission (ICPC), a body set up principally to fight corruption, talk about investigating the source of humongous amounts seen and heard of, as it pertains to the election. However, the worst of all this, is that many Nigerians discuss this ocean of Dollars, that is threatening the future of unborn generations, with glee, sad that they are not part of the delegates. This is proof of misplaced priorities; the National Orientation Agency must as a matter of urgency, step up its work which is clearly cut out now, especially in view of the second stanza of our national anthem ‘…direct our noble cause, guide our leaders right, help our youths the truth to know…’. This is of course, assuming that its priorities are still intact.
Section 24 of the Constitution makes it the duty of every citizen to abide by this Constitution, respect its ideals and its institutions. This applies to the law makers, political office aspirants, political party delegates, institutions and the entire Nigerian citizens. If the welfare of the people is a primary purpose of government, how do the recent acts benefit Nigerians? How come the institutions set up to ensure that all comply with the Constitution, are seemingly mute? Is it a question of ill preparedness, unwillingness or connivance?
Majority of Nigerians are brave, intelligent, innovative and knowledgeable. They should condemn the system which watches and does nothing, as the Constitution is being desecrated. Courageously call out all the aspirants and delegates who shamelessly influenced and benefited from the Dollar rain, in an attempt to sell the country to the highest bidder. Do they have the power? Yes, as Section 14(a) of the Constitution provides that ‘sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority’ this is very important because if the grundnorm, the foundation upon which the country is built is destroyed, where will the aspiring leaders, so called delegates and indeed, entire Nigerians be?
Nevertheless, being that democracy is a bargain between the government and the governed, if Nigerians are tired of practising democracy and will rather opt for plutocracy, they should through their representatives at the National Assembly, amend the Constitution, rather than by their inaction, allow this boloney through the backdoor. Silence in this case, is not golden, but destructive, cowardly and I dare say, an indictment.
Uju Peace Okeke, Voulunteer, Centre for Mmadu on Human Rights (C4M)
Obscene Monetisation of Nigeria’s Politics
Politics everywhere is a money guzzler. It is a very capital intensive project, for those who dare to venture into it. Actually, unless you dare to contest election, you can be in politics as mere hanger-on and bench-warmer, only attending meetings and volunteering as vote canvassers to contestants during elections. But, once you declare your aspiration to contest for any political office both within the party structure or in a general election, the dynamics change. Constituents, acquaintances, friends and family will turn your house and office to a “Mecca” where they can get freebies. The moment you become aspirant, everybody believes you have tons of cash to give out, and they will be readily available to cash out on you.
The preparation for the seventh general election in this Fourth Republic which started on May 29, 1999, has commenced in earnest with the Independent National Electoral Commission (INEC) announcing February 25 and March 11, 2023 as the new dates for the polls. Being a rule based exercise, INEC reeled out the Timetable and Schedule of Activities for 2023 General Election on Saturday, February 26, 2022. Some of the key activities and their dates of implementation are as follows: Publication of Notice of Election – Monday 28th February 2022; Conduct of party primaries, including the resolution of disputes arising from them – Monday, 4th April 2022 to Thursday, 9th June 2022; Submission of nomination forms to INEC via the online portal for Presidential and National Assembly election – 9.00am on Friday, 10th June 2022 to 6.00pm on Friday, 17th June 2022; Submission of nomination forms to INEC via the online nomination portal for Governorship and State Assembly elections – 9.00am on Friday, 1st July 2022 to 6.00pm on Friday, 15th July 2022; Commencement of Campaigns by political parties for Presidential and National Assembly election – Wednesday, 28th September 2022.
Other activities include: Commencement of Campaigns by political parties for Governorship and State Assembly elections – Wednesday, 12th October 2022; Last day of campaign by political parties for Presidential and National Assembly elections — midnight on Thursday, 23rd February 2023; Last day of campaign by political parties for Governorship and State Assembly elections — midnight on Thursday, 9th March 2023; Presidential and National Assembly elections – Saturday, February 25, 2023; and Governorship and State House of Assembly elections – Saturday, March 11, 2023.
2022 Party Primaries in Focus
Party primaries are the processes by which political parties nominate their standard bearers or candidates. It starts from announcements of dates for the purchase of Expression of Interests and Nomination Forms, screening of aspirants, and conduct of primaries for the cleared aspirants. For the 2022 exercise, it held from April 4 – June 9. Even though there is a 2 months’ window to conduct the primaries, most of the political parties conducted the intra-party elections in the last two weeks. Before a political party can conduct its primary, it has to give INEC 21 days’ notice according to Section 82(1) of the Electoral Act 2022 (the Act), submit soft and hard copy of its membership register to INEC at least 30 days to the party primary according to Section 77 (3) of the Act, and also submit list of its elected delegates to INEC at least seven days to the party primary.
Section 84(2) says “The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct, indirect primaries or consensus”. For the benefits of readers, for Direct Primary, all members of the party are involved in the election of the party’s standard bearer. This election takes place at Ward Level according to Section 84(4) of the Act. Thereafter, special Conventions or Congresses shall be held to ratify the candidate with the highest number of votes at designated centres at the National, State, Senatorial, Federal and State Constituencies, as the case may be.
For the Indirect Primary, it is an electoral college system, where elected and or statutory delegates vote to pick the party’s candidate. According to Section 84(8) of the Act “A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting”. As per the third mode of party primary known as Consensus, the Act in Section 84(9) says “A political party that adopts a consensus candidate shall secure the written consent of all cleared aspirants for the position, indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate”.
Abuse of Indirect Primary
In the just concluded party primaries, most political parties chose Indirect Primary as their mode of candidate nomination. The rationale behind this being that, many of the political parties do not have credible membership register. Most of them also do not even have the members. According to INEC sources, there is a political party with just 1,500 members nationwide. Indirect primary is also less cumbersome, and cheaper for the political parties to conduct. This is because unlike direct primaries which takes place at Ward Level (there are 8,809 Wards in Nigeria), Indirect Primary takes place at one chosen location. While many of them may have preferred a consensus mode, the fact that other aspirants have to withdraw in writing and also endorse the consensus candidate makes it dicey, especially if there are many aspirants.
On the flip side, as good as Indirect Primary is, it is prone to corruption, inducement and gross abuse. What transpired in the last couple of weeks in the dominant political parties, vis All Progressives Congress (APC) and Peoples Democratic Party (PDP) attest to this. Using the presidential primaries of these two political parties as a case study, it clearly showed that the winners of their presidential tickets were the highest bidders. Corruption started with the election of delegates. In many instances, there were no elections. Power brokers simply wrote the names of their loyalists and passed it on to their party headquarters, who themselves sent it to INEC. In fact, there was a purported court order asking that Akwa Ibom delegates should not be accredited to vote at the just concluded APC presidential primary in Abuja.
There were myriads of media reports of heavy inducements of delegates of the PDP and APC, during their May 28 – 29 and June 6 – 8, 2022 presidential primaries respectively. On May 28, 2022 a presidential aspirant under the umbrella of PDP, Mohammed Hayatu-Deen stepped down from the race, describing the primary election contest as “obscenely monetised”. The Punch newspaper on June 2, 2022 reported that a People’s Democratic Party national delegate from Kaduna State, Tanko Sabo, donated over N12 million he got from the party’s presidential primary to the less-privileged in the Sanga Local Government Area of Kaduna. According to him, he made a promise to his constituents to give back whatever monetary benefits he got at the PDP primary, if elected as a delegate.
The Peoples Gazette newspaper in its June 7, 2022 edition reported that delegates from Adamawa and Ogun disclosed to it that they allegedly received cash gifts from the newly elected APC presidential standard bearer. At least five delegates from both States claimed in The Gazette in separate interviews, that they were offered American banknotes to support two frontline South West aspirants. The delegates provided information under anonymity, to avoid being accused of anti-party conduct that could carry severe disciplinary measures. Despite its widespread manifestation, law enforcement authorities have had little success with cash-for-vote schemes during primary and general polls, because they are difficult to establish. A politician may deploy hundreds of agents via proxies to give money to delegates or voters, but, disavow involvement in case of arrest or public humiliation.
In case anyone thinks this inducement of delegates is limited to the supposed big political parties, there was a tweet from Dr Ope Banwo on June 9, 2022 about youths receiving money from an ADC aspirant who had no vision or manifesto. Makes you wonder if youths are really different from the old school.”
What Does the Law Say About Bribery and Inducement in Electoral Process?
Section 121 of the Electoral Act 2022 criminalises the offence of bribery and conspiracy, and says anyone who commits the offence is liable on conviction to a maximum fine of #500,000 or imprisonment for a term of 12 months or both. Section 127 of the Act talks about “Undue Influence” and says “A person who — (a) corruptly by his or herself or by any other person at any time after the date of an election has been announced, directly or indirectly gives or provides or pays money to or for any person for the purpose of corruptly influencing that person or any other person to vote or refrain from voting at such election, or on account of such person or any other person having voted or refrained from voting at such election; or (b) being a voter, corruptly accepts or takes money or any other inducement during any of the period stated in paragraph (a), commits an offence and is liable on conviction to a fine of ₦100,000 or imprisonment for a term of 12 months or both.” Section 88(2) – (7) also pegs campaign finance ceilings. For instance, presidential candidates are not to spend more than N5 billion on their campaigns.
Impact of Obscene Monetisation of Nigeria’s Politics
There’s no gainsaying that turning Nigeria’s politics to a bazaar will promote corruption, and impacts negatively on good governance. These aspirants and candidates shelling out huge amounts to ‘buy’ their way into elective political offices, are not ‘Father Christmas’. They see politics as investment, from which they hope to reap bountifully. When they finally succeed in buying their way into office, their main pre-occupation will be to recoup their political investment. Thus, campaign promises, nay dividends of democracy, are kept in abeyance. This high monetisation of politics also means that people of noble ideas and ideals but little financial means, will find it difficult to get elected into office.
There are a number of steps to take, if we are to sanitise the electoral process. Despite the obscene amounts allegedly spent by the standard bearers of APC and PDP to emerge victorious, the argument can be made that they were not yet candidates as they are aspirants until nominated, and the ceiling on campaign expenses affects only candidates. There’s therefore, need to factor what they spend as aspirants and even pre and post-election litigation, as part of their campaign finance. This will need further amendment of the Act. It has been suggested that political parties should henceforth, bear the responsibility of logistics for delegates, ranging from their transportation, accommodation and feeding, rather than leaving such to party moneybags who trade with them. It is also here suggested that, Political Parties should be the ones to pay for the services of Polling Agents, rather than passing the bill to candidates. There are 176,846 Polling Units now, if an agent is to be paid N10,000 each for their services on election day, the amount payable to them is gargantuan.
There is also the need to criminalise third party spending on behalf of aspirants and candidates. Many clever politicians are contesting elections using phantom groups and surrogates to spend on their behalf, so that such expenses are not traceable to them. We saw this recently when many of the aspirants claimed their friends or associates bought their nomination forms. Instead of anti-corruption agents going to the venue of party congresses and conventions to arrest those who would be inducing delegates or voters, they should carry out sting operations at hotels and Governors’ lodges, where the sharing of the money to delegates takes place. Above all, there is need for Government to double down on poverty and unemployment. Otherwise, in the next round of elections, contest to be delegates will be fiercer than those of party standard bearers.
Jide Ojo, Development Consultant and Public Affairs Analyst
Regulating Against Monetised Elections
Dr Sam Amadi
It is no longer news that the Nigerian electoral process is monetised. And this is in dollars. The urban legend is how the various electing primaries of the political parties, including the smaller and newer political parties, have been so monetised that votes were traded freely for dollars. One of the stories is that some aspirants of the ruling APC and the leading opposition, the PDP, paid as much as $50,000 for one delegate. Some have to pay as many as 500 delegates to ensure victory. One funny but tragic urban legend is that one of the ‘lucky’ delegates went straight to an auto market to buy a new car. Another delegate was humanitarian enough to donate the entire proceed of being a delegate to the poor in his community, in imitation of Robbin Hood. Social media has another story of a distraught aspirant to paid delegates N2m and got only two votes going about with hunters to recover his money from the untrustworthy delegates.
If Greg Pallast, the author of ‘The Best Democracy Money Can Buy’, monitored the primary elections in Nigeria, perhaps, he would have been inspired to write a sequel in the form of the worst democracy money can buy. The monetisation of the primary in this unbridled manner points to further degeneration of Nigeria’s hybrid democracy. It damages the prospect of democracy consolidation in terms of what Robert Dahl, in his book, Polyarchy: Participation and Opposition (1971, Yale University Press page 1), called “the quality of being completely or almost completely responsive to all its citizens”. If delegates sell their votes, it means the outcome they produce through the exchange will not reflect their preferences and will rather hurt the notion of democracy conceived as a process of self-expression and self-determination. Furthermore, sell of votes by delegates means that those who pay for the votes are not bound be responsive to the needs of the delegates. This circles back to failure of democracy to yield its dividends.
Delegates are representatives of party members. Based on Section 84(8) of the Electoral Act, 2022, delegates to any elective primary or convention in Nigeria must be democratically elected. Their election carries the responsibility to represent party members in choosing the candidates of their parties. They are not trustees of party members in that they been chosen by party members to apply their reason to make the best choice on their behalf. If they transact based on pecuniary interests, then they are betraying the trusteeship. But beyond the abuse of trust relationship, they are damaging the prospect of electoral democracy translating into dividends of democracy, whether defined in terms of socioeconomic and political goods or in terms of conflict avoidance and dispute settlement.
Why Care Much About Selling and Buying of Votes?
Nigeria have developed a cottage industry around votes buying at election. This phenomenon came to national prominence in the 2017 Anambra gubernatorial elections when candidates were alleged to engage in open buying of votes. Ever since, as we close down some of the loopholes in the electoral process, desperate candidates have perfected the art of paying voters to vote for them. In 2023 electoral circle, we have seen the trend move to primaries. We expect a heightened efforts to buy votes in the general elections in 2023.
Now that the technology of electoral malpractice is centred around buying votes of both delegates and the electorates, how should the regulatory institutions react? What can be done to effectively constrain this trend? Should the election management body and financial regulators take this negative trend serious and what should be the basis and extent of their interventions?
What should be the basis of serious regulatory intervention against the dollarisation of Nigerian electoral process? Ideally, regulators intervene in the private market where there is a market failure. Market failure occurs when the costs of market transactions cannot be fully covered by the price such that there are negative or positive externalities. In this respect, public regulators should allow delegates and electorates decide howsoever who they want to vote. They are permitted to make stupid decisions as long as those decisions are not forced on them. That is democracy. But where such decision is made through inducement, then notwithstanding the outcome of the process, there is a market failure, and the regulator should intervene. The free market of democracy fails when electoral outcomes are not the free expression of the people’s preferences. When that happens, the only way to cure the deficit of democracy is through regulatory interventions that restore agency to voters, whether as delegate for the choice of party candidates or as electorates in the general election. This necessity becomes more pressing in democracies that do not make provisions for independent candidacy, like Nigeria’s.
It remains to ask how the electoral management body, the Independent National Electoral Commission (INEC) and financial regulators like the Economic and Financial Crimes Commission (EFCC) can intervene to restore the stability and credibility of the electoral market. What legal framework exist for such intervention? First, Section 225 of the Constitution regulates political finance and mandates political parties in Nigeria to report to INEC about the state of its finances. Subsection 2 requires the parties to submit to INEC details of the source and analysis of its funds and other assets. Subsection 3 prohibits a Nigerian political party from receiving and keeping any fund from a foreign source. Subsection 5 authorises INEC to make subsidiary regulation on political financing and expenditures.
Section 225 provides adequate and effective legal framework for INEC to intervene to regulate political financing, especially campaign financing. This constitutional framework is reinforced by the electoral law in prohibiting foreign funds for elections and authorising INEC to inspect election expenses, limit how much can be spent for election purposes and determine how it can be spent and the process for bookkeeping and reporting (Sections 86-90). This is an ample provision to deal with the scourge of illicit use of money in elections. Interestingly, INEC has never triggered these provisions of the law. This failure to exercise regulatory powers is tied to failure of the election management body in Nigeria to properly conceptualise its statutory mandate. It focuses so much resource on transactional activities and next to nothing on the more important regulatory activities.
The failure of INEC to fully execute its regulatory responsibilities has led to calls for creation of other agencies to carry out such regulatory activities while INEC focuses on purely transactional aspects of elections. This was the recommendation of the Justice Uwais Committee. The report of the committee was not implemented. INEC is perhaps waking to its regulatory duties. But it is still far from the level required to effectively regulate electoral democracy. INEC needs to develop administrative law resources to be able to regulate the monetisation of elections in Nigeria. These resources are necessary for the commission to act as a quasi-legislative and quasi-judicial body.
It starts with rule making. INEC has not effectively exercised its rule-making powers. Apart from the Electoral Guidelines that it issues as part of the commencement of electoral process, it ought to issue more guidance to political parties on how to implement the constitutional and legal requirements of free, fair, and credible elections. The constitution and the electoral law require the parties to be effectively regulated so as to ensure the democratic rights of citizens to decide who rules over the republic. As the US Supreme Court in California Democratic Party v Jones (530 U.S. 567 (2000) put it, “Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to come together in promoting amongst the electorates candidates who espouse their political views”. In this case, the court struck down a state ballot system where voters can vote in the primary of a party which they are not members. Justice Anthony Scalia argues that whereas the processes that the parties use to select their candidates are not public affairs, states should still regulate them as long as such regulation of party behaviour is within the terms provided in the constitution. In our own case, Section 225 of the Constitution authorises such regulation.
The ‘How-to’ of Effective Regulation of Campaign Finance:
The real challenge is effectiveness. How will INEC be able to regulate against buying of delegates and electorates? What can it do to reduce illicit use of money and even money laundering by aspirants and party leaders? The first line of control is rule making. INEC should issue comprehensive guidelines on various aspects of campaign financing. Such guidelines should provide a requirement for all aspirants to keep the books on all funds received and spent in their aspirations. It will also have a requirement of monthly reporting of all incomes and expenditures by aspirants, candidates, and political parties. Such reports should be published by the parties in the websites as well and made available to the public. INEC should encourage public scrutiny of such reports as an incentive to ensure accurate reporting. As authorised by the new electoral law, INEC should be willing to impose punishments against leaders of the parties and their candidates for failure to follow such guidelines on financial report.
This is one aspect of regulatory work that Nigerian regulators are reluctant to engage because it requires a lot of desk work. The heart of regulation is accurate understanding of a social problem and ability to change such problematic behaviour through imposition of intelligent and effective controls that reduce or obliterate such social pathology. During the last conventions of the main parties, officers of Economic and Financial Crimes Commission flocked to the venues of the convention in vain efforts to intercept bribe money. Of course, the buying and selling of votes of the delegates have completed before delegates arrive at the convention venue. In spite of doubts about the readiness of the financial regulator to stop such fraudulent practice, the major constraints is their lack of understanding of administrative law procedures and the weakness resources of regulation at their disposal.
If the INEC and EFCC work together to develop a comprehensive bookkeeping and reporting obligations which commence even before the aspirants take the first step towards becoming candidates, then they would be in a position to control the incentives to engage in free buying and selling of votes. The role of such rules is to increase the cost of detection and possible punishment. Except there are obligations to keep proper books and report comprehensively, there may be no footprints for regulatory enforcement. So, INEC is totally remise if it engages in deterrent actions against monetisation of elections without comprehensive rule making that increases the costs of aspirants, candidates and parties engaging in such acts.
Electoral democracy is based on the notion that citizens are equal and free and should not be governed except by those they have chosen for the purpose. The heart of political equality is self-determination. In the classical rendition of the doctrine of political equality, when citizens obey the law, they are obeying themselves. Although many political scholars have tried to ridicule this notion of equality of all citizens and the circular notion that by obeying a law I am obeying myself, the idea of electoral democracy has flourished across the world.
This ideal of democracy fractures if the people make the choice of leaders under manipulation or coercion. If candidates freely buy the votes of citizens in primary or general elections, they undermine the freedom of choice at the heart of democracy. When this happens, state institutions are entitled to breach the wall of separation between public and private and intervene to restore the environment for freedom of choice by citizen. This is the basis for intense regulation of campaign finance to ensure level playing field, transparent transactions and free expression and accurate aggregation of citizens’ preferences. It is time to do this to save our democracy from becoming the worst democracy money can buy.
Dr Sam Amadi